Chapter 1: Introduction to Tort Law

1. Introduction
2. Accidents in the U.S.
A. Introduction
B. Accidental Deaths and Disabling Injuries
C. Accident Costs
D. Tort Claims and Damage Awards
3. A Brief Historical Background of Tort Law
4. The Functions and Goals of Tort Law
A. Deterrence and Accident Prevention
B. Compensation
C. Avoidance of Undue Burdens on Economic Activities
D. Effective and Efficient Legal Process
E. Fairness
5. The Culpability Spectrum in Tort Law
A. Intended Harm: Intentional Torts
B. Unintended Harm
1) Strict Liability
2) Negligence
3) Reckless
6. The Coffee and Culpability Problems
A. The Willful Misconduct Problem
B. The Actual McDonalds Negligence Case
C. The No-Fault (Strict Liability) Problem
1) Strict Liability
2) Compensation Systems
7. The Tort Law Litigation Process
8. Overview of Personal Injury Damages
9. Vicarious Liability and Employer Responsibility
A. Introduction
B. Application of Vicarious Liability Principles
1) Employee or Independent Contractor
Kime v. Hobbs
2) Scope of Employment
Pyne v. Witmer
C. Vicarious Liability Problems
Chapter 2: Negligence Law: Breach of Duty
1. Overview of Negligence Law
A. Outline of the Elements of a Negligence Case
B. Overview of the Elements of a Negligence Case

1)
2)
3)
4)
5)

Duty
Breach of Duty
Causation (Cause-In-Fact)
Scope of Liability (Proximate Cause)
Damages

C. Defenses to a Negligence Case

D. Proving the Elements of a Negligence Case
2. Analysis of the Elements of a Negligence Case
A. Analysis of Negligence Case
Rudolph v. Arizona B.A.S.S. Federation
B. Putting the Analysis of a Negligence Case All Together
3. The Reasonable Care Standard
4. The Reasonable Person
A. General Characteristics
Vaughan v. Menlove
Reed v. Tacoma Ry. & P. Co
Oliver Wendell Holmes
B. Reasonable Men and Women
Edwards v. Johnson
C. Emergency
Foster v. Strutz
D. Physically Different
E. Mentally Disabled Individuals
Bashi v. Wodarz
F. Children
Robinson v. Lindsay
5. Developing the Reasonable Care Standard
A. Balancing Risk vs. Untaken Precautions
United States v. Carrol Towing Co.
McCarty v. Pheasant Run, Inc.
B. Role of Custom
Hagerman Construction, Inc v. Copeland
Trimarco v. Klein
The T.J. Hooper
6. Alternatives to the Reasonable Care Standard
A. Specific Judicial Standards
Baltimore & Ohio v. Goodman
Pakora v. Wabash Ry. Co.
B. Safety Statutes and Regulations as Standards
Ferrell v. Baxter

 Wright v. Brown
I. Relationship of Statutory Standards to the Reasonable Care
II. The Role of Excuses
III. Negligence Per Se vs. Child Standard of Care
Bauman v. Crawford
Childproof Cap Problem
7. Proof of Negligence
A. Circumstantial Proof
Clark v. Kmart Corp.
B. Res Ipsa Loquitor
Byrne v. Boadle
Eaton v. Eaton
1) The Defendants Responsibility The Control Element
Ybarra v. Spangard
8. The Standard of Care in Professional Malpractice
A. Negligent Medical Performance
Smith v. Finch
B. The Doctrine of Informed Consent
Phillips v. Hull
Medical Malpractice Problem
C. Legal Malpractice and the Liability of Other Professionals
Smith v. Lewis
9. Putting Breach of Duty Analysis Together
Chapter 3: Duty
1. General Duty of Reasonable Care
Macpherson v. Buick Motor Co.
A.W. v. Lancaster County School District
2. Limited Duty Rules
A. Owners and Occupiers of Land
American Industries v. Ruvalcaba
Note on Child Visitors
Rowland v. Christian
B. Limited Duties to Act Affirmatively to Prevent Harm
i.
To Assist or Rescue
Yania v. Bigan
Farwell v. Keaton
No Duty To Assist Note
ii.
To Take Protective Measures Against Risks Posed by Third Parties
Tarasoff v. Regents of University of California
Dunkle v. Food Service East

iii.

To Protect Against Criminal Conduct

Delta Tau Delta v. Johnson
iv.
Public Duty Doctrine
Cuffy v. City of New York
C. Limited Duties Regarding the Type of Harm
i.
Emotional Distress Injuries
a) Persons Subject to Direct Physical Risk
Mitchell v. Rochester Ry. Co.
b) Bystander Emotional Harm- Persons Outside The Zone of Danger
Clohessy v. Bachelor
c) Independent Duty for Emotional Well-Being
Burgess v. Superior Court
Huggins v. Longs Drug Stores California
Boyless v. Kerr
D. Duty to Protect Against Fear of Future Disease
Majca v. Beekil
ii.
Pre-Natal Torts
Greco v. United States
iii.
Consortium Loss
Charron v. Amaral
Reagan v. Vaughn
iv.
Pure Economic Loss
People v. Express Airlines v. Consolidated Rail Corp.
3. Putting Duty Analysis Together
A. Duty Analysis Framework
B. Duty Practice Problems
Pumping Gas to Drunks Problem
Physician Liability to Third Parties Problems
Chapter 4: Causation
1. The Conceptual Basis of Causation
A. But For Causation
Sowles v. Moore
New York C.R.R. Co. v. Grimstad
B. The Substantial Factor Test
Corey v. Havener
Smith v. J.C. Penney Co.
C. Proof of Causation
i.
Cumulating Proof to Identify the Cause
Ingersoll v. Liberty Bank of Buffalo
Clarence Morris on Torts

ii.

2.
3.

4.

5.

Untaken Precautions: Proving the Counterfactual

Zuchowicz v. United States
Willians v. Utica College of Syracuse
iii.
Multiple Parties: Apportionment of Damages or Joint Liability
Fugure v. Pierce
Loss of Chance of Recovery (skipped)
Using Scientific and Technical Evidence to Prove Causation
The Daubert Trilogy
Globetti v. Sandoz Pharms
Glastetter v. Novartis Pharm
Proving Who Caused the Harm
A. Alternative Liability
Summers v. Tice
Barron v. Martin-Marietta Corp.
B. Market Share Liability
Hymowitz v. Eli Lilly & Co.
Brenner v. American Cyanamid Co.
Thomas v. Mallett
Putting Causation Together

Chapter 5: Scope of Liability (Proximate Cause)

1. The Conceptual Basis of Scope of Liability
A. Direct Consequences Test
B. The Foresight Test
2. Applications of the Foresight Rule
A. Unforeseeable Plaintiffs
Palsgraf v. Long Island R.R. Co.
B. Unforeseeable Consequences
Juisti v. Hyatt Hotel Corp. of Maryland
C. Intervening Forces
i.
Criminal Conduct of a Third Person
McClenahan v. Cooley
Price v. Blaine Kern Artista, Inc.
ii.
Shifting Responsibility Issue
McLaughlin v. Mine Safety Appliances Co.
Bigbee v. Pacific
3. Exceptions to the Foresight Rule
A. Medical Malpractice Complications Rule
Association for Retarded Citizens v. Fletcher
B. The Eggshell Plaintiff Rule
Pace v. Ohio Dept. of Transp.

C. The Rescuer Rule

Sears v. Morrison
4. Framework for Analyzing Scope of Liability
A. Foresight Analysis
i.
Unforeseeable Plaintiffs and Unforeseeable Consequences
ii.
Intervening Forces and Shifting responsibility
B. Existing Exceptions to The Foresight Test
Chapter 6: Damages
1. Personal Injury Damages
Calva-Cerqueira v. U.S.
2. Pain, Suffering, and Emotional Distress
3. Loss of Enjoyment of Life Damages
Eyoma v. Falco
4. Punitive Damages
State Farm v. Campbell
BMW of N. Am. V. Gore
Philip Morris USA v. Williams
Exxon v. Baker
Mathias v. Accor Econ. Lodging
5. Wrongful Death
Krouse v. Graham
6. Minority and Gender Status and Equal Justice
A. Racial Status
McMillan v. City of New York
Tarpeh-Doe v. U.S.
B. Gender Status
Reilly v. United states
United States v. Bedonie
C. Lesbian and Gay Family Status
D. Socio-Economic Status
Williams v. New York
Chapter 7: Defenses and Immunities
1. Contributory Negligence
- Arises when the unreasonable conduct of the plaintiff contributes to the plaintiffs
harm. Ps recovery is barred because of its negligent conduct. It is an all of nothing
approach. If the P is found 1% negligent, P can no recover.
- Last Clear Chance Doctrine: P can still recover fully against D upon proof that D was
more culpable because he had the last opportunity to prevent the harm

2. Comparative Fault
- Where both a plaintiff and a defendant are at fault, they should share the responsibility
rather than have it fall entirely on one party or the other.
- Pure Comparative Fault: the negligent P recovers some damages from D no matter how
much at fault the P is. (Ex. If 98% negligent, he can recover 2% from D).
- Modified comparative fault approach: Ps recovery is barred if the Ps fault is greater
than the Ds or as great as the Ds.
- Doctrine of Avoidable consequences: After being harmed, P must take reasonable steps
to avoid exacerbating their injuries. Under this, D need not pay for any additional harm
that the P could have avoided.
Hoffman v. Jones
- court replaces contributory negligence with pure comparative fault
says it is most fair
- Dissent says that changing the law is for the legislature
Wassell v. Adams
- Court says rape victim was 97% at fault because she opened the door to
the rapist and let him come in and didnt run away when she had the
chance
- One way to make sense of comparative negligence is to assume that the
required comparison is between the respective costs to the plaintiff and
to the defendant of avoiding the injury.
3. Assumption of Risk
A. Express Assumption of Risk
- Express consent arises when one person gives explicit written or oral permission
to release another party from an obligation of reasonable case.
- The person signing the waiver is giving up more than the right to recover if
harmed by inherent risks; the person is giving up the right to recover for injuries
suffered as a result of the Ds unreasonable conduct.
- Waivers do not relieve defendant of liability for their reckless or intentional
wrongdoing.
B. Implied Assumption of Risk
- Inferred from a partys conduct and the circumstances
- Comprises three basic elements:
a.
Knowledge of the risk
b. Appreciation of the risk
c.
Voluntary exposure to the risk
Bowen v. Cochran
- guy lit his grill improperly even though he had been expressly instructed
not to do it that way grill explodes in his face

court finds definitely contributory negligence, and implied assumption

of risk
- Dissent says no way implied assumption because there is no evidence
that he knew of the consequences of the use (first basic element). No
evidence that lighting it improperly was the cause of the grill exploding
to prove contributory negligence.
Murray v. Ramada Inns
- man dives into pool headfirst dies from injuries no lifeguard on duty
- Court: where there is both a defense from assumption of risk and
comparative fault, the court must use comparative fault. Assumption of
risk as a total bar to recovery would be inconsistent with the statutes of
comparative fault (the sole purpose was to divide the damages so that P
recovers)
C. Primary Assumption of Risk- Limited Duty
- When one party enters into a relationship with another, knowing and expecting
that the other person will not offer protection against certain risks arising out of
the relationship.
Cheong v. Antablin
- two skiers collideneither acting recklessly, parties are co-participants
4. Comparative Fault Analysis